Recent media profiles of same-sex binational "Love Exiles"

Max Oliva, left and Jesse Goodman have left the United States
 in order to remain together

The Los Angeles Times is just one of several West Coast-based newspapers which have been doing stories on the impact of the Defense of Marriage Act recently.

On Monday, the Times published "Same-sex couples find rough road to immigration." A key excerpt:

When Jesse Goodman and his Argentine fiance left the United States in 2006 after an unsuccessful immigration battle, they expected that one day they would be able to return home to New York.


Goodman and Max Oliva had become used to finding temporary ways to be together. They had fallen in love quickly and planned on marrying but soon learned that, unlike similar situations with straight couples, their relationship wouldn't help Oliva stay in the country.


For a time, they relied on a mix of work permits and tourist visas to stay together. When the last permit was set to expire five years ago, they decided it was best to leave the U.S.


"We ran out of options," Goodman said.


While straight American citizens can obtain green cards for their spouses and fiances, the Defense of Marriage Act has precluded same-sex couples from receiving the same benefits.


In February, the couple was encouraged when the Obama administration announced it would no longer defend the act in court, saying it violates the Constitution's equal protection clause, a conclusion that two federal district courts had reached in 2009.


The announcement that the Obama administration would no longer defend the law was applauded by gay and lesbian activists.


But the administration has sent mixed signals about its intent to enforce the law, which has led to some confusion among same-sex couples as they try to navigate the immigration system.


Rather than continue waiting for a resolution to that issue, Goodman and Oliva decided to move forward with trying to return to the U.S. by filing a fiance visa petition for Oliva.


The couple expects that it will be denied. But they are prepared to go to court.


"I think we're right," Oliva said. "We're fighting against something that is unfair."

In addition to the Los Angeles Times, the San Francisco Chronicle also ran an article about a binational couple facing deportation. Theirs was titled "Defense of Marriage Act threatens his citizenship."

An excerpt:

Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia, have spent the last 19 years together, mostly in an apartment in San Francisco's Castro district. 

Makk gave up his career, started a business in San Francisco and invested in rental property, all to be with Wells and meet various visa requirements. Seven years ago, they married in Massachusetts. 

Starting June 13, Makk, 48, faces possible deportation if he remains in the country illegally when his current visa expires. If he leaves, he would not be readmitted, the couple would be all but permanently separated and Wells, who has severe health complications from AIDS, would be left without his spouse and sole caregiver. 

"We're at the end of our rope," said Wells, 55. "Ever since we met, all we've tried to do is be together. The focal point of our lives, everything we've done, is just so we could be together."

Law denies benefits

They face this quandary because the 1996 Defense of Marriage Act denies all federal benefits, including spousal immigration preferences, to same-sex couples. If Wells and Makk were heterosexual, they could apply for an I-130 visa, or spousal petition, which could allow Wells to sponsor Makk for permanent U.S. residency. 

President Obama and Attorney General Eric Holder said in February that they believe the Defense of Marriage Act is unconstitutional and would no longer defend it in court, but the administration is enforcing the law as required until it is repealed or struck down by the courts. It is under challenge in several states and will probably be decided by the Supreme Court. 

"It's devastating, the idea of him leaving in a couple of weeks and not being able to get back in," Wells said. After suffering a near-fatal heart attack and severe arthritis in his hips, Wells said he is unable to care for himself. "I don't know how I'm going to manage," he said. "My stomach is in knots." 

An estimated 54,000 bi-national same-sex couples live in the United States, according to the Williams Institute, a pro-gay think tank at UCLA. Not all of them are married.

Of course, frequent readers know that I myself am part of a binational couple, but was able to become a United Citizen through familial relationships in 2003. I'm on the board of directors of Immigration Equality, the national LGBT immigration advocacy group.

Sen. Kerry And 10 Others Send Letter Urging Immigration Equality

FOR IMMEDIATE RELEASE:  April 6, 2011

CONTACT: Whitney Smith (202) 224-4159   

Kerry Leads Fight for LGBT Immigration Equality

WASHINGTON, D.C.– Senator John Kerry (D-Mass.) today led 11 colleagues in a letter to Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano urging immigration equality for legally married same-sex couples who are currently discriminated against under the Defense of Marriage Act (DOMA).

“We applaud the President’s decision to no longer defend the Defense of Marriage Act in federal court,” the Senators wrote. “With DOMA as law, however, we are creating a tier of second-class families in states that have authorized same-sex marriage. The same second-class status is imposed upon marriages between same-sex partners in which one spouse is not a U.S. citizen. We urge you to reconsider this position in light of the administration’s position that it will no longer defend DOMA in federal court.”

“Immigration Equality, and the families we represent, are enormously grateful to Senator Kerry and his colleagues for calling on the Administration to keep our families together,” said Rachel B. Tiven, executive director of Immigration Equality, a national organization that works to end discrimination in U.S. immigration law.  “Unless USCIS changes course, real families will be impacted, and American citizens will be separated from their loved ones.  Maintaining the status quo for these families will mean forcing them apart, or into exile.  We call on USCIS to heed the advice of Senator Kerry, and the other signatories on today’s letter, and allow these loving, committed couples to remain together.”

In light of the Obama Administration’s decision to stop defending DOMA in federal court, the Senators urged:

• The Department of Homeland Security (DHS) to hold marriage-based immigration petitions in abeyance pending a legislative repeal or a final determination on DOMA litigation. 

• DHS to exercise prosecutorial discretion in commencing and prosecuting removal proceedings against married noncitizens that would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA. 

• The Department of Justice to institute a moratorium on orders of removal issued by the immigration courts to married foreign nationals who would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA.

The full text of the letter is below:

April 6, 2011

The Honorable Eric Holder                                         The Honorable Janet Napolitano
Attorney General                                                        Secretary
Department of Justice                                                 Department of Homeland Security
Washington, DC 20520                                              Washington, DC 20393

Dear Mr. Attorney General and Madam Secretary: 

We applaud the President’s decision to no longer defend the Defense of Marriage Act (DOMA) in federal court.  The law discriminates against a class of Americans, raising fundamental questions of over basic civil rights.  However, the administration is still enforcing DOMA, because it is the law of the land. 

Five states plus the District of Columbia, have granted same-sex couples the right to get married.  With DOMA as law, however, we are creating a tier of second-class families in these states that have authorized same-sex marriage. 

The same second-class status is imposed upon marriages between same-sex partners in which one spouse is not a U.S. citizen.  The new administration policy has created confusion and uncertainty in the immigration context.  In recent days, the administration issued conflicting statements about how it will consider immigration petitions from same-sex married couples seeking immigration benefits for a non-citizen spouse.  As of March 30, 2011, U.S. Citizenship and Immigration Services clarified that marriage-based petitions will be considered under current law, with DOMA preventing recognition of otherwise-valid and lawful same-sex marriages. 

We urge you to reconsider this position in light of the administration’s position that it will no longer defend DOMA in federal court. Specifically, we ask the Department of Homeland Security (DHS) to hold marriage-based immigration petitions in abeyance pending a legislative repeal or a final determination on DOMA litigation.  In addition, we ask DHS to exercise prosecutorial discretion in commencing and prosecuting removal proceedings against married noncitizens that would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA.  We also call upon the Department of Justice to institute a moratorium on orders of removal issued by the immigration courts to married foreign nationals who would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA.

Preserving family unity is a fundamental American value and is also the cornerstone of our nation’s immigration law.  Thank you for your consideration of this request. 

Sincerely,

John Kerry                              Patrick Leahy                          Barbara Boxer

United States Senator             United States Senator             United States Senator

Ron Wyden                             Christopher Coons                  Jeff Merkley

United States Senator             United States Senator             United States Senator

Kirsten Gillibrand                   Sherrod Brown                       Daniel Akaka

United States Senator             United States Senator             United States Senator

Daniel Inouye                         Sheldon Whitehouse               Frank Lautenberg

United States Senator             United States Senator             United States Senator

Hopes For Binational Couples Dashed As Discriminatory Policy Returns

Despite the good news from earlier in the week, the federal government has now re-affirmed it's policy of applying immigration law in a discriminatory fashion towards married binational same-sex couples.

The New York Times reports:

On Monday, Christopher S. Bentley, the chief spokesman for the immigration agency, confirmed in a statement that cases nationwide involving married gay couples had been suspended. What Mr. Bentley did not say was how long that hold might last and what issues the agency was seeking to clarify. 

But the elated reaction among gay advocates and couples was immediate. Describing Mr. Bentley’s statement as “a darn big deal,” Rachel B. Tiven, the executive director of Immigration Equality, called it “the first domino to fall” for gay American citizens with foreign spouses. 

Ms. Tiven said she understood that immigrants in married gay couples could now apply for green cards and instead of being automatically denied, their cases would be suspended until the courts decided the validity of the marriage act. 

Word also went out across the country. In Princeton, N.J., Josh Vandiver and Henry Velandia, in the middle of a public forum on immigration issues, embraced and cheered. They said they had heard from their immigration lawyer that the agency’s announcement might mean at least a temporary reprieve from deportation for Mr. Velandia. 

Mr. Vandiver, 29, is an American citizen and a political science graduate student at Princeton. He and Mr. Velandia, 27, who is from Venezuela, were married last August in Connecticut, one of the states that recognize same-sex marriages. Their application for a green card for Mr. Velandia was recently denied, and he is facing deportation as early as May. 

But on Tuesday, Mr. Bentley issued a new statement, saying that Citizenship and Immigration Services “has not implemented any change in policy and intends to follow the president’s directive to continue enforcing the law.” 

Mr. Bentley said the agency’s field offices had suspended cases for a short period, perhaps a week or two, while lawyers clarified a “narrow legal issue” concerning the marriage act. He said the agency would probably resume action on same-sex marriage cases in coming days and would continue to deny immigration status to foreigners based on those marriages. 

Immigration lawyers tried on Tuesday to sort out the meaning of the events. 

“We have to be very cautious,” said Lavi S. Soloway, a lawyer who represents Mr. Velandia and Mr. Vandiver. He said gay couples should continue to understand that “if they file for immigration status, they may be putting themselves at considerable risk of deportation.”

If you are in a binational relationship or need more information about the effects of immigration law on LGBT people, I urge you to check out the Immigration Equality (and Immigration Equation Action Fund) website. (Full disclosure: MadProfessah is on the board of directors of Immigration Equality and the Immigration Equality Action Fund.)

Immigration Equality Hails CIS Policy Change

FOR IMMEDIATE RELEASE March 28, 2011

CONTACT: Steve Ralls
(202) 347-7007 / sralls@immigrationequality.org

IMMIGRATION EQUALITY HAILS GOVERNMENT DECISION ALLOWING LESBIAN AND GAY COUPLES TO FILE GREEN CARD APPLICATIONS

ANNOUNCEMENT FOLLOWS CALLS BY GROUP TO END SEPARATION OF FAMILIES

WASHINGTON, DC – Immigration Equality, the national experts on immigration rights for lesbian, gay, bisexual and transgender people, hailed an announcement today from U.S. Citizenship and Immigration Services (USCIS) that the agency will allow Americans with spouses from abroad to apply for green cards while courts weigh constitutional challenges to the federal Defense of Marriage Act.

“USCIS has issued guidance to the field,” USCIS Spokesman Christopher Bentley announced, “asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues.”

“Today’s statement is the first domino to fall for LGBT Americans with foreign national spouses,” said Rachel B. Tiven, the group’s executive director. “As Immigration Equality noted in our letters to both the Department of Homeland Security and the Department of Justice, we believe that no spousal application should be denied until DOMA’s constitutionality is settled. Immigration Equality has been fighting for LGBT immigrant families since 1994. In that time we have counseled more than 10,000 families – and for them, today’s news is a sign that relief is finally on the way.”

Last week, Immigration Equality’s legal team filed a green card application on behalf of Edwin Blesch, an American citizen, and Tim Smulian, his South African husband. Despite being legally married in South Africa – a marriage recognized in Edwin’s home state of New York – the couple has struggled to remain together. Edwin struggles with failing health and increasingly depends on Tim as his primary caretaker. The couple joined Immigration Equality in hailing today’s announcement.

“Every day, we live with the very real possibility that, despite following every law and every policy of the United States, Tim will be forced to leave the country, and I will be left without my caretaker and the love of my life,” Blesch said in a statement. “Today’s news gives us great relief, and great hope that we may soon be able to put that worry behind us. For the first time, we can begin to plan the rest of our lives together without fear that we will be torn apart.”

Couples who believe they may be impacted by today’s decision are encouraged to contact Immigration Equality’s legal team for free, confidential advice at www.immigrationequality.org/contactus.php.

# # #

Immigration Equality is a national organization that works to end discrimination in U.S. immigration law, to reduce the negative impact of that law on the lives of lesbian, gay, bisexual, transgender and HIV-positive people, and to help obtain asylum for those persecuted in their home country based on their sexual orientation, transgender identity or HIV-status. Through education, outreach, advocacy, and the maintenance of a nationwide network of resources, we provide information and support to advocates, attorneys, politicians and those who are threatened by persecution or the discriminatory impact of the law.

Married Binational Lesbian Couple Has Deportation Suspended

Lavi Soloway of the Stop The Deportations project is reporting a monumental development in LGBT immigration reform: the very first decision by a U.S. immigration judge to suspend a deportation based on the legally married status of a same-sex couple.

Monica Alcota and Cristina Ojeda of Queens are the first married LGBT couple to argue in court that a pending deportation should be terminated since the Obama administration’s February announcement that it would no longer defend section 3 of the Defense of Marriage Act, according to their attorney. Alcota, a citizen of Argentina, wed her American wife last year in Connecticut but has continued to face removal proceedings.


At a Tuesday morning hearing in New York Immigration Court, a U.S. Immigrations and Customs Enforcement attorney indicated that the government was willing to adjourn the deportation proceedings against Alcota while Ojeda proceeds with a green card petition on behalf of her noncitizen spouse. The judge agreed with the government attorney’s recommendation and asked the couple for an update on Ojeda’s alien relative petition by December.


“It definitely brings us more hope,” Ojeda told The Advocate of the hearing. “It’s the first time someone has been willing to let us pursue our case and believes that we should be treated equal."


The couple’s attorney, Lavi Soloway, said that while there was no clear indication that the government's Tuesday decision has broader policy implications on other immigration cases involving married, binational gay couples, the outcome is nevertheless “tremendously significant.”


“It means that for the first time in a deportation proceeding, the judge and the government have looked at a married gay couple and considered fairly that they ought to have an opportunity to pursue a marriage-based immigration case, given the changing legal landscape," Soloway said.

This is a very important development, but it should be noted that immigration cases are very fact-dependent and venue-specific. An immigration judge in another state could hear a nearly identical case and come to a different result. Soloway is looking for other binational couples in other immigration situations such as where the foreign national is on a valid non-immigrant visa (i.e. H-1(B) for employment or F or J for students) legally married to a United States Citizen. You can contact them directly at stopthedeportations [at] gmail.com.